Carolyn Deigan as executrix for the estate of the late James Boyd Lockrey v Barnard James Fussell (No. 2)

[2020] NSWCA 60

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Carolyn Deigan as executrix for the estate of the late James Boyd Lockrey v Barnard James Fussell (No. 2) [2020] NSWCA 60
Hearing dates:	On the papers
Decision date:	08 April 2020
Before:	Bathurst CJ at [1] Macfarlan JA at [2] White JA at [3]
Decision:	Order that the respondent pay the costs of the proceedings below and the costs of the appellant’s notice of motion filed on 18 December 2019.
Catchwords:	COSTS — Appeals — whether Court should make order as to costs of the proceedings below where no order was made by the primary judge – where on appeal the Court was not informed of the reason for not making an order as to costs at the time of the principal judgment – cost should follow the event – no issue of principle
Cases Cited:	Autodesk Inc v Dyason [No. 2] (1993) 176 CLR 300 Deigan v Fussell [2019] NSWCA 299
Category:	Principal judgment
Parties:	Carolyn Deigan (as executrix for the estate of the late James Boyd Lockrey) (Appellant) Bernard James Fussell (Respondent)
Representation:	Counsel: D L Cook SC (Appellant) D K L Raphael (Respondent)   Solicitors: CLS Legal (Appellant) Etienne Legal (Respondent)
File Number(s):	2018/302102

Judgment

1. BATHURST CJ: I agree with the orders proposed by White JA and with his Honour’s reasons.

2. MACFARLAN JA: I agree with White JA.

3. WHITE JA:   On 10 December 2019 the Court allowed the appellant’s appeal and ordered that the respondent pay the appellant’s costs of the appeal (Deigan v Fussell [2019] NSWCA 299). No order was made as to the costs of the proceedings below. I observed (at [229]):

“The primary judge did not make a costs order. On 23 November 2018 he made an order merely noting an agreement between the parties. No submissions were made as to the costs of the proceedings below if the appeal succeeded. Ms Deigan simply submitted that the appeal should be allowed with costs. Accordingly, I do not propose any order with respect to the costs below. If any order as to those costs is sought an application can be made by notice of motion to be filed within 14 days.”

4. By notice of motion filed within 14 days the appellant sought an order that the respondent pay the costs of the proceedings below. Such an order had been sought in the notice of appeal, but as noted (at [229]) no submissions about the proceedings below were made on the hearing of the appeal.

5. The primary judge’s order of 19 September 2018 was:

“Direct that within 21 days of today’s date the plaintiff [respondent] bring in a minute of any proposed further directions for the carrying of order 2 [that the contract be specifically performed] into effect, and dealing with the costs of the proceedings which if not agreed are to be the subject of further argument before me at a date and in accordance with the directions, to be determined by arrangement with my Associate.”

6. JusticeLink records that on 23 November 2018 the primary judge said:

“1.   I note the agreement between the parties.”

7. On the hearing of the appeal no information was provided to the Court as to the agreement there noted.

8. Nor has any such information been provided by either party on the appellant’s notice of motion for an order for the payment of the costs of the proceedings below. It may be taken that whatever the agreement was, it is not relevant to the costs orders to be made.

9. The appellant’s solicitor deposed that it was an oversight that the appellant did not make any submissions at the hearing of the appeal as to the costs below because it was assumed that if the appeal were successful, it would follow as a matter of course that the Court would make such an order. The respondent did not seek to cross-examine the appellant’s solicitor on that evidence. That evidence should be accepted.

10. The appellant submitted that it should be presumed that the reason that no costs order was made at first instance was that the question of whether the respondent was in a financial position to complete the contract was an issue in dispute that was yet to be determined. The primary judge accepted a submission made by the respondent that that issue should be determined by giving the respondent the opportunity to complete the contract.

11. The respondent did not dispute this.

12. The appellant submitted that because on appeal it was found that the appellant ought to have succeeded at first instance, costs should follow the event.

13. The respondent did not submit that there was any agreement between the parties or any other reason why, if the appellant had been successful at first instance, the appellant should not have been entitled to her costs of the proceedings at first instance. Rather, the respondent submitted that the reservation of the proceedings for further consideration before the primary judge, and the grant of liberty to apply to the primary judge for any consequential orders that might be required consequent upon the declaration that the contract of sale had been rescinded as and from 18 May 2017, meant that any application for costs at first instance and a determination of whether or not the rescission was “ab initio” was reserved for consideration before the primary judge.

14. The respondent also submitted that on the principles in Autodesk Inc v Dyason [No. 2] (1993) 176 CLR 300 at 302, the jurisdiction to reopen the judgment to make a costs order as to the proceedings below should be exercised with great caution having regard to the importance of the public interest in the finality of litigation.

15. I do not accept either submission. The reason for not making a costs order in respect of the proceedings below was because, on the record available to this Court, it was unclear why no order for costs of the proceedings below had been made. It might have been because of an agreement between the parties of which the Court was unaware. Neither party suggests that this was the case.

16. Clearly, in the ordinary course, costs would follow the event and the allowance of the appeal would mean that the appellant was entitled to her costs of the proceedings below.

17. The reservation of the proceedings for further consideration before the primary judge and the grant of liberty to apply for any consequential orders following the making of the declaration that the contract had been rescinded did not extend to the costs orders to be made of the proceedings at first instance. The purpose of that order was to deal with any questions which might arise as a consequence of the declaration that the contract had been validly rescinded. Nor was this a case to which the principles in Autodesk Inc v Dyason [No. 2] applies. In this case the Court was simply not informed of the reasons why no costs order had been made at first instance and hence made no order as to the costs below.

18. I propose the following orders:

1. Order that the respondent pay the costs of the proceedings below and the costs of the appellant’s notice of motion filed on 18 December 2019.

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Decision last updated: 08 April 2020